Legalizing targeted killings
For most of the last decade, Israel has absorbed incessant criticism for its policy of targeted killings against the leaders of Hamas, Islamic Jihad and other terrorist organizations. After the elimination of Sheik Ahmad Yassin and Abdul Aziz Rantissi, both of whom had masterminded Hamas attacks against Israeli civilians during the Second Intifada, then U.N. Secretary-General Kofi Annan demanded that Israel “immediately end” its practice of “extrajudicial killings” – a convenient term for Annan, implying that military targets should be tried on the battlefield in the midst of a war.
At a meeting of the U.N. Security Council in April 2004 on this question, Israel was castigated by one country after another. The British representative said the practice was “unlawful.” The French spokesman said that Israel was violating “fundamental principles of international law.” The Russians said they rejected Israel’s policy. When Israel began using targeted killings more extensively to put an end to the wave of suicide attacks in the heart of Israel’s cities after the outbreak of the Second Intifada, even the U.S. Ambassador to Israel, Martin Indyk, adopted the same tough rhetoric against Israel. He appeared on Israeli television in July 2001, saying: “The United States government is very clearly on the record as against targeted assassinations.’’ He specifically added: “They are extrajudicial killings, and we do not support that.”
It is against that background that the speech by U.S. Attorney-General Eric Holder on March 5 at Northwestern University School of Law appeared revolutionary. He announced: “It is entirely lawful ... to target specific senior operational leaders of Al-Qaida and associated forces.” Holder rejected calling these operations “assassinations.” He said, “They are not, and the use of that loaded term is misplaced,” because assassinations were “unlawful killings.” The context of his legal decision was significant, for he made clear: “We are at war with a stateless enemy.” This meant that the laws of war applied to the war on terrorism. It was not a police action, in which terrorists were to be arrested and read their rights. The terrorist masterminds that were being targeted were combatants, plain and simple.
What happened to cause this change? Washington’s policy has been evolving since the Sept. 11, 2001, terror attacks, after which U.S. intelligence agencies began using targeted killings very selectively. The technological development of unmanned aerial vehicles, like the Predator, and pinpoint intelligence made the use of warfare against terrorist organizations possible. But there were initially legal questions involved. Was the war against terrorism a law enforcement activity that required capturing terrorists and putting them on trial? Former Secretary of Defense Donald Rumsfeld says in his memoirs that when U.S. forces went into Afghanistan in 2001, using a Predator drone, they identified a convoy with Taliban leader Mullah Mohammed Omar. But before the Predator could shoot, there were long consultations with lawyers, by which time Omar had escaped.
The first known successful drone attack by the U.S. was in Yemen in November 2002 against an Al-Qaida leader who had been involved in the attack on the USS Cole in 2000. In June 2006, the U.S. Air Force eliminated Abu Musab al-Zarqawi, the commander of Al-Qaida in Iraq, using a targeted killing. But where the use of targeted killings greatly expanded was in Pakistan, which gave sanctuary to the Taliban forces fighting the U.S. in Afghanistan. Targeted attacks using drones allowed the U.S. to counter the Taliban beyond the Afghan border in Pakistan without having to invade its territory with ground forces. The number of these attacks increased dramatically in George W. Bush’s last year in office and especially during Barack Obama’s presidency.
Israel’s experience with Hamas and other terrorist organizations was not very different from what the West had to face against the Taliban. Hamas wanted to use international law to its advantage in the struggle with Israel; it even opened up a legal division, al-Tawthiq (documentation), that provided data on Israeli military activities to the U.N. and other bodies seeking to take action against IDF officers. Hamas’ strategy was to mix its military commanders with its civilian population, which it used as human shields. It hoped the West would conclude that Hamas commanders were protected from attack by international humanitarian law, like the famous Fourth Geneva Convention. Such a determination would have tied the hands of the IDF in defending Israel. As a result, Hamas could strike Israeli civilians with rockets with impunity, while hiding behind a legal curtain that protected its commanders.
There were Israeli NGOs, like the Public Committee Against Torture in Israel, that petitioned the country’s Supreme Court in 2005, arguing that the laws of war did not apply in Israel’s struggle with terrorist organizations, but rather “the legal system dealing with law enforcement in occupied territory.” As a result, targeted killings, in their view, were “totally illegal.” The Supreme Court rejected the petition against targeted killings, making clear that the law of armed conflict applied to the situation between Israel and the Palestinians. It still required balancing humanitarian considerations with military needs. Clearly, in each case that Israel decided on a targeted killing of a terrorist commander, proportionality needed to be carefully observed and civilian casualties avoided as much as possible, as in any military operation.
After U.S. forces eliminated Osama bin Laden in Pakistan on May 2, 2011, Professor Alan Dershowitz noted that all the states ganging up on Israel for killing Hamas leaders were now silent about the case of Bin Laden. This was a case of global hypocrisy. The NATO allies in Afghanistan were benefiting from targeted killings by U.S. forces against the Taliban. The Russian parliament adopted a law in 2006 permitting Russian security services, with the approval of the president, to kill alleged terrorists overseas. Belatedly, the major powers are validating the same Israeli strategy against terrorism that they had universally condemned a little more than a decade ago.